United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti Judge
OPINION AND ORDER DENYING PETITION FOR A WRIT OF
HABEAS CORPUS [*]
J. MICHELSON U.S. DISTRICT JUDGE
Keith dated Devvon Almond. Early one morning, Almond woke to
find Keith sexually assaulting her seven-year-old daughter.
Keith eventually pled guilty to one count of second-degree
criminal sexual conduct. This offense does not require the
state to prove, beyond a reasonable doubt, an act of sexual
penetration. Yet at Keith's sentencing, the trial judge
found, by a preponderance of the evidence, that Keith
committed an act of sexual penetration. So the trial judge
enhanced Keith's sentence. And as Keith was also eligible
for an enhancement as a habitual offender, Keith received 90
months to 22 ½ years in prison.
appealed. He advanced a single claim: because a preponderance
of the evidence did not establish an act of sexual
penetration, the trial judge abused its discretion in
enhancing Keith's sentence. Keith lost.
filed this petition for a writ of habeas corpus. Now he
argues both sentence enhancements violate federal law. As
Keith cannot establish any constitutional violations, the
Court will deny his petition.
December 28, John Keith visited his girlfriend, Devvon
Almond. (R. 8, PID 92.) Keith spent the evening with Almond
and her two daughters. (Id. at 93.) As bedtime drew
near, the girls wanted to catch Santa Claus, so Keith helped
the girls bring their beds into the home's front room.
(Id. at 95-96.) Once the girls settled down to
sleep, Keith retired to Almond's bedroom. (Id.
3:00am, Almond woke to find Keith gone. (Id. at 97.)
As Keith routinely left early, Almond was unsurprised.
(Id.) She got up to lock the front door (because
Keith did not yet have a key) and on her way, saw Keith in
the front room. (Id. at 98-99.)
only his boxer shorts, Keith was on his knees, stooped behind
Almond's seven-year-old daughter. (Id.)
Almond's daughter's pajamas were pulled down.
(Id.) As Almond's daughter lay in the fetal
position, Almond watched Keith thrust his penis in a
“back and forth motion” against her
daughter's backside. (Id. at 101.)
screamed. (Id. at 102.) Keith got up and said he did
it as payback because Almond filed a sexual assault complaint
against Keith's son (after Keith's son allegedly
assaulted Almond's other daughter). (Id. at
104.) Keith gathered his clothes and left; Almond called the
police. (Id. at 105.)
the police arrived, they initially spoke with Almond.
(Id. at 111.) She told them what she witnessed and
the police accompanied Almond's daughter to a CARE House
facility where they interviewed her about the incident.
(Id.) Almond's daughter offered a graphic
description of the assault and a medical exam noted redness
around her vagina and tearing to her rectum. See People
v. Keith, No. 315169, 2014 Mich.App. LEXIS 1063, at *3
(Mich. Ct. App. June 10, 2014).
state charged Keith with second-degree criminal sexual
conduct. Understanding the charging decision in this case is
key to understanding Keith's habeas corpus claims.
First-degree criminal sexual conduct requires the
state prove an act of sexual penetration with a person
“under 13 years of age.” Mich. Comp. Laws
§750.520b(1)(a). The offense is punishable by any term
of years up to life. Mich. Comp. Laws § 750.520b(2)(a).
Second-degree criminal sexual conduct requires the
state prove “sexual contact” with a person
“under 13 years of age.” Mich. Comp. Laws §
750.520c(1)(a). The offense is punishable by at most 15 years
in prison. Mich. Comp. Laws § 750.520c(2)(a).
pled guilty to second degree criminal sexual conduct.
(Id. at 125.) He admitted to engaging in
“sexual contact” with a person under 13.
(Id. at 127.) But the plea did not come with any
sentencing agreement. (Id. at 125.)
between his plea and his sentencing, two important things
occurred. First, police officers gave Keith a polygraph.
(Id. at 133.) And during the polygraph, Keith
admitted to an act of sexual penetration with Almond's
daughter. (Id.) Thus, officers amended ...